Articles Posted inSex Crimes

With the advent of smartphones – which arm practically every citizen with a readily available high-definition camera – Unlawful Surveillance has become an incredibly common charge in New York, especially in the populated City. In a nutshell, the charge applies when someone inappropriately records, views or broadcasts another without their consent. And it’s a serious one.

Those who are accused of using cameras of any kind to record into dressing rooms, for example, are generally charged under Penal Law Section 250.45(1) and/or 250.45(2), which applies where a defendant surreptitiously views, broadcasts or records a person dressing or undressing, or the sexual or other intimate parts of a person when such person expects to be in private.

Those who surreptitiously view, broadcast or record someone in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, or shower, among other places, are charged under PL 250.45(3)(a).

Today, Judge Steven O’Neill (who presided over Cosby’s recent sexual assault trial in Pennsylvania), sentenced Cosby to a sentence of 3-10 years in prison. The court had previously classified him as a sexually violent predator following a prior hearing. The court defended this decision by explaining that although the evidence of Cosby’s guilt had been “overwhelming,” including his own civil deposition, Cosby had refused to acknowledge his guilt or express any remorse for his actions. His attorneys had requested a sentence of house arrest, citing Cosby’s poor health and functional blindness, but the court did not agree. Cosby plans to appeal his conviction and sentence, and could conceivably stay free on bail until his appeals are resolved, though the court may deny the request that he be free pending his appeal.

This sentence is near the top end of the Pennsylvania sentencing guidelines for Cosby. Indeed, the guidelines recommended a sentence of between 22 and 36 months, and Cosby essentially got a sentence of 36 to 120 months. This case illustrates a few issues, probably, as it relates to sentencing. First, remaining defiant in the face of sentencing may feel good to a defendant, but judges hate it. The best way to get leniency is to show remorse and ask forgiveness, and the opposite is absolutely true as well. Cosby may think he is going to be vindicated on appeal, but frankly, I would bet a lot of money that he will not. So, copping an attitude like he did throughout the post-conviction and sentencing phase almost certainly did nothing but cost him a few of his precious remaining years of life in jail. Any smart defendant knows that even if he feels like he was wrongly convicted, the best thing to do at sentencing is say you’re sorry to the judge and victim. Cosby does not appear to be a smart defendant.

Second, judges are human, and this case might demonstrate that. Although he is not supposed to the evidence of Cosby’s prior alleged misdeeds and sexual assaults of other victims (some of whom testified at Cosby’s trial in support of Andrea Constand’s complaint), the judge probably factored those things into consideration in concluding that he was a sexually violent predator worthy of serious detention. It would have been understandably difficult for the judge to ignore those other purported complainants, not to mention the dozens of others who have publicly come forward.

Perhaps someday, the New York Assembly will legalize sex work (several political candidates have recently promised to take steps toward legalization). For now, however, it is still a Class B misdemeanor in New York to “engage or agree or offer to engage in sexual conduct with another person in return for a fee.” Penal Law § 230.00. Similarly, it is illegal to patronize a prostitute, meaning that it is a misdemeanor to “pay a fee to another person as compensation for such person or a third person having engaged in sexual conduct with him or her, or to pay or agree to pay a fee to another person pursuant to an understanding that in return therefor such person or a third person shall engage in sexual conduct with him or her.” Penal Law §§ 230.02 and 230.04. Of course, it is also illegal to promote prostitution (i.e. be a pimp or madam), which means to “knowingly cause or aid a person to commit or engage in prostitution, procure or solicit patrons for prostitution, provide persons or premises for prostitution purposes, or operate or assist in the operation of a house of prostitution or a prostitution enterprise, or engage in any other conduct designed to institute, aid or facilitate an act or enterprise of prostitution.” Penal Law §§ 230.15 and 230.20.

Law enforcement has long sought, with mixed results, to combat prostitution offenses in New York City. Back when prostitutes used to walk the streets of notorious neighborhoods in Manhattan, police would arrest prostitutes for just “loitering for the purpose of prostitution” (basically, walking on the sidewalk dressed like a prostitute talking to potential customers about tricks). Police would also go undercover and pose as johns to get prostitutes to make illegal offers of sexual conduct for fees. Police officers continue to pose as prostitutes to entice johns to make illegal offers, though nowadays they are more likely to find a target inside of a nice establishment in the city instead of on the sidewalk. Indeed, undercover police officers dressed as attractive prostitutes often target middle aged men alone at hotel bars and proposition them to see if they will “take the bait,” so to speak. These sting victims oftentimes have legitimate entrapment defenses, but not after already having been humiliated and having had their livelihoods placed in danger as a result of the arrests.

With the advent of the internet, much of the prostitution business moved online to websites like Craigslist and Backpage. Prostitutes and escorts would post ads on these sites and johns would simply call them to make appointments. The postings were so numerous that despite some law enforcement efforts to make undercover arrests of these prostitutes – and perhaps more effectively, arrests of johns via false prostitution ads – the sheer volume of ads on these sites made it impossible to realistically stop the trade via undercover operations. Ultimately, the “escort” sections of these sites were shut down by law enforcement threats to hold the managers of these sites criminally and civilly liable.

Under New York state law, there are three degrees of rape, with Rape in the First Degree (Penal Law Section 130.35) being the most serious (a Class B violent felony). Rape in the Third Degree (Penal Law 130.25), however, may be the most common criminal charge, and it can be brought in three different ways.

Per the statute: “A person is guilty of Rape in the Third Degree when: 1. He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than seventeen years old; 2. Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old; or 3. He or she engages in sexual intercourse with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent.”

Subsection 2 is the most common charge, which involves a criminal charge being brought against an older person (21 years old or older) and a complainant younger than 17. Notably, this charge can be brought against the will of the younger party, meaning that it is not necessary for the complainant to “press charges” for the older person to be convicted. Sometimes these charges are proven without the testimony of the younger party by medical evidence or pregnancy, third party witnesses (who catch and observe the people in the act of sexual intercourse), or admissions by the older party.

The New York District Attorney’s Office recently announced that a Manhattan grand jury has indicted Harvey Weinstein for additional sexual assault charges relating to a third complainant. Specifically, Mr. Weinstein is facing an additional charge of Criminal Sexual Act in the First Degree (Penal Law Section 130.50). Mr. Weinstein was already facing a charge of Criminal Sexual Act in the First Degree based upon the allegation that he had forced a different woman to perform oral sex upon him against her will, and a separate count of Rape in the First Degree for allegedly raping a second complainant. Interestingly, he is also now facing two counts of Predatory Sexual Assault (Penal Law Section 130.95). These new charges significantly alter the forecast for Mr. Weinstein and seriously hamper his defense for tactical reasons discussed below.

Predatory Sexual Assault charges are very serious Class A-II felonies. They carry mandatory minimum prison sentences of ten years in jail, and a conviction for this crime carries a mandatory maximum sentence of life in prison. (Thus, for example, a person sentenced to an indeterminate prison sentence of ten years to life would be eligible for parole after roughly ten years, and if granted parole would then be on parole for the rest of his life.) These charges can apply in a variety of circumstances, but here, they have been applied because he is accused of committing the crimes of Rape in the First Degree or Criminal Sexual Act in the First Degree against multiple people. See Penal Law Section 130.95(2). Basically, Mr. Weinstein would be convicted of this charge if it is proven that he in fact sexually assaulted more than one of the complainants. (There are two Predatory Sexual Assault counts that presumably apply to different combinations of complainants in this matter).

These charges have an important practical effect on the case (notwithstanding these potential penalties). Specifically, in order to get convictions on these charges, the prosecutor would now have to prove at trial that Weinstein assaulted more than one of the three current complainants in the case. It might at first seem that the prosecutors have made their jobs more difficult by adding these charges, but in actuality, this new evidentiary necessity thwarts an anticipated defense strategy for trial severance.

Federal criminal law prohibits a wide range of activities relating to transporting people and/or traveling across state lines or internationally for the purpose of engaging in illegal sexual activity. Specifically, 18 U.S.C. § 2423 prohibits four types of activities and carries very severe penalties.

First, 18 U.S.C. § 2423 makes it a felony punishable by a minimum of 10 years in prison (and by as much as life in prison) to “knowingly transport[] an individual who has not attained the age of 18 years in interstate or foreign commerce… with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense.” This provision obviously applies to those engaging in the human trafficking of underage prostitutes, and also potentially applies to an adult who drives or attempts to drive a minor across state lines so that he or she can have sex with that minor in another state. It could also apply to people who purchase bus or plane tickets for minors to travel into the U.S. or across state lines for the purpose of engaging in illegal sex.

According to numerous reports, Harvey Weinstein has been indicted on charges of Rape in the First Degree, Rape in the Third Degree, and Criminal Sexual Act in the First and Third Degrees. The first-degree charges are Class B violent felonies, meaning that they are punishable by a minimum of 5 years and a maximum of 25 years in prison. Rape in the First Degree (Penal Law Section 130.35) applies to cases in which defendants allegedly use forcible compulsion (physical force or the threat of physical force or harm) to engage in non-consensual vaginal intercourse. Criminal Sexual Act in the First Degree (Penal Law Section 130.50) applies to cases in which the defendants have allegedly used forcible compulsion to non-consensually penetrate mouths or anuses with their penises. (Thus, the distinction between “Rape” and “Criminal Sexual Act” under New York criminal law is the orifice being penetrated.) The third-degree varieties of these charges most commonly are applied in situations where a person is “incapable of consent,” meaning physically helpless (i.e. asleep or intoxicated). These third-degree charges are Class E felonies without mandatory minimum prison sentences.

It should come as no surprise that Weinstein was indicted given that he was arrested and preliminarily charged with these same crimes. Indeed, an indictment by the grand jury was basically a sure thing once the decision to arrest Weinstein was made. Weinstein could have testified before the grand jury in his own defense but that would have been a tactical mistake. A grand jury presentation in a case like this normally involves a prosecutor simply calling the complainant to testify under oath before the grand jurors about the crime. A defendant being indicted (for any crime, not just rape and sexual assault) does not get to listen to the witnesses testifying against him in the grand jury, nor does his attorney have the right to cross-examine those witnesses or make arguments to the grand jury. However, by testifying before the grand jury, Weinstein would have subjected himself to being cross-examined by a prosecutor under oath. That decision would have locked him into a version of events that he could not later modify or correct for trial. Equally problematically, it would have given the prosecutor an opportunity to hear Weinstein’s trial testimony prior to trial. This would have afforded the prosecutor months (or maybe even years) to prepare a scathing cross-examination for trial after having a “practice round” with him in the grand jury. Given that the odds of prevailing at the grand jury are normally terrible for a defendant – and probably especially so for Weinstein given the publicity surrounding his situation – there was realistically very little for Weinstein to gain from testifying before the grand jury. Most defendants understandably decline to do so.

The viability of the Paz de la Huerta rape case against Harvey Weinstein

Recently, numerous media outlets have published stories suggesting that the NYPD has built a “viable case” of rape against Harvey Weinstein based upon a complaint made by actress Paz de la Huerta. (Specifically, according to a recent Vanity Fair article, the actress claims that Harvey Weinstein raped her in her apartment on two occasions in 2010). Given that dozens of women – mostly Hollywood actresses – have now publicly complained of sexual misconduct by Harvey Weinstein, the public’s desire to see Weinstein punished is incredibly high. The Manhattan District Attorney, Cy Vance, is deservedly under considerable pressure to bring Weinstein to justice. After all, his office made a basically indefensible decision to dismiss a strong sexual assault case against Weinstein based upon a timely and straightforward complaint by a victim which was corroborated by an audiotaped confession and a prompt outcry to a friend. This decision is especially ripe for criticism since Weinstein’s defense attorneys donated money to Vance’s re-election campaign.

However, bringing this new rape case against Weinstein may actually be far more difficult and problematic than this prior sexual assault case against Weinstein that the D.A.’s office chose not to prosecute. What follows is the objective and detached opinion of Matthew Galluzzo, a criminal defense attorney and former prosecutor in the Sex Crimes Unit of the Manhattan District Attorney’s Office.

After an incredibly long period of deliberation – 52 hours – a Pennsylvania jury recently announced that it could not reach a unanimous decision regarding any of the criminal charges against Bill Cosby involving his alleged sexual assault of Andrea Constand. The judge was forced to declare a mistrial and the prosecutor has already declared that their office intends to retry the case with a new jury. Of course, this now begs the questions: 1) what went wrong for the prosecution, and 2) what could they do differently to get a conviction? Matthew Galluzzo, a criminal defense attorney and former Manhattan sex crimes prosecutor, offers a few thoughts on the subject.

First and foremost, sex crimes cases involving acquaintances are among the most difficult cases in which to secure convictions. Some talking heads in the media seem to think that this case should have been an easy conviction but that presumption simply belies the reality of what happens in criminal court. These types of cases are inherently challenging for prosecutors for several reasons that were at issue here.

To begin, these “he said/she said” sexual assault cases depend enormously on the credibility of the accuser, and the defense attorneys did everything that they should have done as advocates for their client to raise doubts about Ms. Constand. First, they highlighted her inconsistent statements to law enforcement about the incident. Nothing torpedoes a sex crimes case faster than inconsistent reports from the accuser. After all, inconsistent statements also tend to be made more often by liars than by those telling the truth. Inconsistent statements by the complainant suggest that the complainant has little respect for the truth and thus cannot be trusted to tell it at trial under oath. They also tend to suggest that the complainant has a nefarious agenda that causes him or her to “tailor” her testimony to her audience be perceived more favorably or to increase his/her chances of success. Understandably, defense attorneys always pounce on evidence that suggests those things and they did in this case. Specifically, they argued (as they should have) that the complainant was an attention-seeking, money-grubbing liar who had attempted to minimize her prior contacts and relationship with Cosby when initially making her report to law enforcement in an obvious effort to be perceived more favorably by them. They further argued that she had had a consensual romantic relationship with Cosby and only made a report to police when she did not profit from the relationship in the way that she had hoped.

A significant percentage of police reports and lawsuits alleging sexual abuse involve people accusing co-workers of having committed the offense. However, unlike complaints involving sexual abuse allegedly committed by strangers or acqutainances, these sorts of matters tend to take a more circuitous route through the court system (if they even arrive there at all). Individuals accused of sexually assault or harassing co-workers face a host of complicated issues, and need experienced attorneys wholly devoted to defending their interests and future.

Thorough investigation of these cases is the key to success. Individuals that allege that they have been assaulted or harassed by co-workers frequently (perhaps, typically) report the incident to management before they contact the police or plaintiffs' attorneys. One of the keys to defeating these allegations is by highlighting the inconsistencies in the reports. Accordingly, determining what exactly the accuser said to management – as well as to other co-workers – about the alleged incident can be crucial to undercutting the allegations later brought in a police complaint or lawsuit. Significant inconsistencies can be devastating to the complaining witness' credibility and must be uncovered as soon as possible.

Plaintiffs also oftentimes threaten to file police reports unless their civil settlement demands are met by the accused individuals or their employers. A skillful and trusted advocate may be able to pre-emptively undermine the credibility of such a plaintiff by communicating with the prosecutor after the criminal complaint has been made but before an arrest has been authorized. Matthew Galluzzo is a former Manhattan sex crimes prosecutor and understands some of the concerns and reservations that prosecutors sometimes have about civil plaintiffs in this arena, and has the respect of many prosecutors specializing in this area of investigation.